The move into a care home may be the best option for an individual who is struggling to manage at home.

Where an individual can make the decision to either move into care, or refuse to do so, it is their decision to make. In instances that the individual does not have the legal capacity to decide for themselves, the following can make the decision for them:

Welfare Attorney - if an individual has in place a Welfare Power of Attorney and no longer has legal capacity, their Attorney can make this decision for them. The Attorney must take into account the individual’s past, present and future wishes and ultimately do what is in their best interest. Should you have a welfare Power of Attorney in place, it is wise to have conversations with your attorney about your thoughts and feeling about future care, i.e. would you rather have care at home or do you have a preferred care home in mind. These conversations make any potential decision by your attorney easier in the future.

Welfare Guardian - A Guardian is appointed by the Court to act and make decisions on behalf of an adult with incapacity. A Guardianship Order can only be applied for when the adult cannot make their own decisions regarding their welfare and a Power of attorney cannot be put in place. Please note that a Guardianship order is far more onerous and costly to put in place than a Power of Attorney.

Local Authority - Local Authorities are permitted under Section 13ZA of the Social Work (Scotland) Act 1968 to take steps to move an adult into care, should this be in the adult’s best interests and where they are incapable to make the decision themselves. There are certain conditions placed on the Local Authorities’ decision-making power, including that the action must not result in significant restrictions on the individual’s liberty and there cannot be objections from the adult or any person with an interest in the adult.

It is important to have your legal affairs up to date and having a Power of Attorney in place can make decisions regarding your future care far easier to make. Should you be interested in putting in place a Power of Attorney, please call our office on 01292 281711 to speak with a member of our Private Client team.